A “Living Constitution” for a Dying Republic

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. … Done…the seventeenth day of September, in the year of our LORD one thousand seven hundred and eighty seven.” –George Washington and the delegates

Saturday, 17 September, is Constitution Day, in recognition of the 218th anniversary of that venerable document’s signing by our nation’s Founders. Of course, most of the federal judiciary pays no homage to that date. They are preoccupied rewriting the so-called “Living Constitution,” amending it by judicial diktat rather than its prescribed method in Article V.

For its first 150 years (with a few exceptions), our Constitution stood as our Founders, and more importantly, “the people,” intended — as is — in accordance with its original intent.

In the early 20th Century, there was still evidence of reverence for the supreme law of the land. For example, prohibitionists acknowledged that the Constitution did not include a single word about alcohol consumption and would have to be amended before the central government would have the authority to outlaw alcohol. On 16 January 1919, the 18th Amendment was ratified by the states. Within the decade the law of unintended consequences prevailed, and even ardent prohibitionists realized that enforcing the 18th Amendment had spawned a massive and violent organized-crime culture. Thus, on 5 December 1933, the 21st Amendment was ratified, repealing the 18th.

These two amendments were the last pertaining most directly to the authority of the central government, while the remaining five address specific modifications to the plain language of our Constitution. So how is it now that the central government has become the behemoth our Constitution expressly prohibited?

Prior to the reign of Franklin D. Roosevelt, the courts were still largely populated with originalists, who properly rendered legal interpretation based on construction of the Constitution’s “original intent.” However, FDR grossly exceeded the Constitutional limits upon the authority of his office and that of the legislature in his folly to end The Great Depression (the latter falling victim to World War II — not FDR’s social and economic engineering). FDR’s extra-constitutional exploits opened the door for the judiciary to follow the same path — to read into the Constitution what was necessary to make it conform to the demands of the prevailing political will.

In the decades that followed, the notion of a “Living Constitution,” one subject to all manner of judicial interpretation, took hold in the federal courts. Judicial activists, those who legislate from the bench by issuing rulings based on their personal interpretation of the Constitution, or at the behest of likeminded special-interest constituencies, were nominated for the federal bench and confirmed in droves.

This degradation of law was codified by the Warren Court in Trop v. Dulles (1958). In that ruling, the High Court noted that the Constitution should comport with “evolving standards…that mark the progress of a maturing society.” In other words, it had now become a fully pliable document. Indeed, the Constitution has become “a mere thing of wax in the hands of the judiciary which they may twist and shape into any form they please,” as Thomas Jefferson warned, and the judiciary, in Jefferson’s words, “the Despotic Branch”.

Consequently, we now have a Constitution in exile, its having becoming little more than a straw man as the courts have become increasingly politicized. To wit, in recent decisions, judicial activists on the Supreme Court have cited “national consensus” and “international law” as factors in their decisions.

On Wednesday of this week U.S. District Judge Lawrence Karlton ruled that recitation of the Pledge of Allegiance in government schools constitutes a “coercive requirement to affirm God.” That, of course, is factually inaccurate (AKA “a lie”). Students may refrain, on their own or at their parents’ discretion, from repeating any or all words in the Pledge.

Karlton said he was bound by precedent of the Ninth Circuit Court of Appeals, though he could have ruled against and said he was “bound by the Constitution of these United States.” That case is on a fast track to the Supreme Court.

The Ninth Circuit’s errant ruling is based on the most insidious line of activist interpretations of our Constitution’s First Amendment invoking the so called “Wall of Separation”. As noted in this column last week, the late Supreme Court Chief Justice William Rehnquist said, “The wall of separation between church and state is a metaphor based upon bad history, a metaphor which has proved useless as a guide to judging. It should be frankly and explicitly abandoned. … The greatest injury of the ‘wall’ notion is its mischievous diversion of judges from the actual intention of the drafters of the Bill of Rights.”

This brings us to the Chief Justice nomination of Judge John Roberts to replace Chief Justice William Rehnquist. Judge Roberts, and a yet-to-be-named nominee to replace retiring Justice Sandra Day O’Connor, is taking a considerable pounding from Sen. Ted Kennedy and Sen. Joe Biden, who are doing everything they can to undermine support for a judge who would not do their bidding.

Just how important is it that President George Bush’s Constitutional-constructionist nominees be confirmed? It is more important than anything else this administration could hope to accomplish. The future of the Republic is riding on these confirmations.

The Federalist Papers, as the definitive explication of our Constitution’s original intent, clearly define original intent in regards to Constitutional interpretation. In Federalist No. 78 Alexander Hamilton writes, “[The Judicial Branch] may truly be said to have neither FORCE nor WILL, but merely judgment…liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.” In Federalist No. 81 Hamilton notes, “[T]here is not a syllable in the [Constitution] which directly empowers the national courts to construe the laws according to the spirit of the Constitution….”

George Washington advised, “The basis of our political systems is the right of the people to make and to alter their Constitutions of Government. But the Constitution which at any time exists, ’till changed by an explicit and authentic act of the whole People is sacredly obligatory upon all.”

Today, 218 years hence, Justice Antonin Scalia says of judicial activism, “As long as judges tinker with the Constitution to ‘do what the people want,’ instead of what the document actually commands, politicians who pick and confirm new federal judges will naturally want only those who agree with them politically.”

While the words “conservative” and “liberal” are ubiquitously used to describe Republicans and Democrats respectively, these words properly should describe whether one advocates for the conservation of our Constitution, as originally intended, or its liberal interpretation by judicial activists. Does one want to conserve Constitutional limits on the central government, or liberate those limits?

Our Constitution was written and ratified “in order secure the Blessings of Liberty to ourselves and our Posterity” as set forth in the Declaration of Independence “endowed by their Creator.” It established a Republic intended to reflect the consent of the governed, a nation of laws, not men.

At the close of the Constitutional Convention in Philadelphia, Benjamin Franklin was asked if the delegates formed “a republic or a monarchy.” He responded, “A republic if you can keep it.”

We have all but lost it.

Observe Constitution Day by visiting an excellent resource on our nation’s heritage. Link to The Patriot’s Historic Documents.